Citation Nr: 1034951
Decision Date: 09/16/10 Archive Date: 09/21/10
DOCKET NO. 08-26 588 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Louisville,
Kentucky
THE ISSUES
1. Entitlement to service connection for bilateral hearing loss.
2. Entitlement to service connection for dental trauma.
REPRESENTATION
Appellant represented by: Disabled American Veterans
WITNESS AT HEARING ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
B. Thomas Knope
INTRODUCTION
The Veteran served on active duty from September 1970 to April
1972.
This matter is on appeal from a May 2007 decision by the
Department of Veterans Affairs (VA) Regional Office (RO) in
Louisville, Kentucky.
The Veteran testified before the undersigned Veterans Law Judge
in May 2010. A transcript of the hearing is of record.
The issue of entitlement to service connection for bilateral
hearing loss is addressed in the REMAND portion of the decision
below and is REMANDED to the RO via the Appeals Management Center
(AMC), in Washington, DC.
FINDING OF FACT
The evidence shows that during service the only dental trauma was
to tooth 8, which was partially avulsed and repaired; however,
there is no evidence that the dental condition was the result of
loss of maxilla, mandible, ramus, coronoid process or hard
palate.
CONCLUSIONS OF LAW
1. The criteria for service connection for residuals of dental
trauma, for purposes of compensation, have not been met. 38
U.S.C.A. §§ 1110, 1131, 5103(a), 5103A, 5107 (West 2002 & Supp.
2010); 38 C.F.R. §§ 3.102, 3.159, 3.381, 4.150, 17.161 (2009).
2. For purposes of eligibility for outpatient dental treatment,
dental trauma to tooth number 8 occurred during active duty
service. 38 U.S.C.A. §§ 1110, 1131, 5103(a), 5103A, 5107 (West
2002 & Supp. 2010); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.381,
17.161 (2009).
REASONS AND BASES FOR FINDING AND CONCLUSIONS
Veterans Claims Assistance Act of 2000
As provided for by the Veterans Claims Assistance Act of 2000
(VCAA), VA has a duty to notify and assist claimants in
substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100,
5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2010); 38 C.F.R.
§§ 3.102, 3.156(a), 3.159, 3.326(a) (2009).
Proper notice from VA must inform the claimant of any information
and medical or lay evidence not of record (1) that is necessary
to substantiate the claim; (2) that VA will seek to provide; and
(3) that the claimant is expected to provide. Quartuccio v.
Principi, 16 Vet. App. 183 (2002). This notice must be provided
prior to an initial unfavorable decision on a claim by the RO.
Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006);
Pelegrini v. Principi, 18 Vet. App. 112 (2004).
In addition, the notice requirements of the VCAA apply to all
five elements of a service-connection claim, including: (1)
veteran status; (2) existence of a disability; (3) a connection
between the veteran's service and the disability; (4) degree of
disability; and (5) effective date of the disability. See
Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Further,
this notice must include information that a disability rating and
an effective date for the award of benefits will be assigned if
service connection is awarded. Id. at 486.
Here, the VCAA duty to notify was satisfied by way of letters
sent to the Veteran in February 2007 and January 2008 that fully
addressed all notice elements and was sent prior to the initial
RO decision in this matter. The letters informed him of what
evidence was required to substantiate the claim and of his and
VA's respective duties for obtaining evidence. Under these
circumstances, the Board finds that the notification requirements
of the VCAA have been satisfied as to both timing and content.
With respect to the Dingess requirements, in the same letters
from February 2007 and January 2008, the RO provided the Veteran
with notice of what type of information and evidence was needed
to establish a disability rating, as well as notice of the type
of evidence necessary to establish an effective date. With these
letters, the RO effectively satisfied the remaining notice
requirements with respect to the issue on appeal. Therefore,
adequate notice was provided to the Veteran prior to the transfer
and certification of his case to the Board and complied with the
requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b).
Next, VA has a duty to assist a veteran in the development of the
claim. This duty includes assisting him or her in the
procurement of service treatment records and other pertinent
records, and providing an examination when necessary. See
38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159 (2009).
With respect to the third factor, the types of evidence that
"indicate" that a current disorder "may be associated" with
service include, but are not limited to, medical evidence that
suggests a nexus but is too equivocal or lacking in specificity
to support a decision on the merits, or credible evidence of
continuity of symptomatology such as pain or other symptoms
capable of lay observation. McLendon v. Nicholson, 20 Vet. App.
79 (2006).
After a careful review of the file, the Board finds that all
necessary development has been accomplished, and therefore
appellate review may proceed without prejudice to the Veteran.
See Bernard v. Brown, 4 Vet. App. 384 (1993). First, the RO has
obtained the Veteran's service treatment records and VA
outpatient treatment records, as well as the Veteran's records
submitted in conjunction with a claim for disability with the
Social Security Administration. He was also provided an
opportunity to set forth his contentions during the hearing
before the undersigned Veterans Law Judge in May 2010.
The Board notes that, in Bryant v. Shinseki, --- Vet. App. ----,
No. 08-4080 (Jul. 1, 2010), the United States Court of Appeals
for Veterans Claims recently held that 38 C.F.R. 3.103(c)(2)
(2009) requires that the Veterans Law Judge who chairs a hearing
fulfill two duties to comply with the above the regulation.
These duties consist of (1) the duty to fully explain the issues
and (2) the duty to suggest the submission of evidence that may
have been overlooked.
Here, during the May 2010 hearing, the Veteran was specifically
asked about how he incurred an injury to his tooth and how his
tooth has been affected since he left active duty. He was
specifically questioned about any bone injury to the jaw or
mouth. As such, the Board finds that, consistent with Bryant,
the undersigned Veterans Law Judge complied with the duties set
forth in 38 C.F.R. 3.103(c)(2) and that the Board can adjudicate
the claim based on the current record.
The Board acknowledges that a VA medical opinion was not obtained
to determine the nature and etiology of his tooth disorder. In
determining whether the duty to assist requires that a VA medical
examination be provided or medical opinion obtained with respect
to a veteran's claim for benefits, there are four factors for
consideration: (1) whether there is competent evidence of a
current disability or persistent or recurrent symptoms of a
disability; (2) whether there is evidence establishing that an
event, injury, or disease occurred in service, or evidence
establishing certain diseases manifesting during an applicable
presumption period; (3) whether there is an indication that the
disability or symptoms may be associated with the veteran's
service or with another service-connected disability; and (4)
whether there otherwise is sufficient competent medical evidence
of record to make a decision on the claim. 38 U.S.C.A. §
5103A(d); 38 C.F.R. § 3.159(c)(4).
In deciding whether to remand the issue for a medical nexus
opinion, the Board notes that the Federal Circuit, in a recent
decision, upheld the determination that a VA medical examination
is not required as a matter of course in virtually every
veteran's disability case involving a nexus issue. Waters v.
Shinseki, 601 F.3d 1274 (Fed. Cir. 2010) (distinguishing cases
where only a conclusory generalized statement is provided by the
veteran, in which case an examination may not be required).
As is explained below for dental claims, service connection for
compensation purposes requires the existence of dental conditions
found at 38 C.F.R. § 4.150, such as loss of maxilla, mandible,
ramus, coronoid process or hard palate. However, such disorders
were not shown, nor has the Veteran asserted the existence of
such a disorder. Therefore, the Board finds that a remand for a
VA opinion would not be beneficial in the adjudication of this
issue to the extent that it was denied, and is thus not required
in this case.
Significantly, neither the Veteran nor his representative has
identified, and the record does not otherwise indicate, any
additional existing evidence that is necessary for a fair
adjudication of the claim that has not been obtained. Hence, no
further notice or assistance is required to fulfill VA's duty to
assist in the development of the claim. Smith v. Gober, 14 Vet.
App. 227 (2000), aff'd, 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz
v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v.
Principi, 16 Vet. App. 183 (2002).
Entitlement to Service Connection
Under the relevant laws and regulations, service connection may
be granted for a disability resulting from disease or injury
incurred in or aggravated by active service. 38 U.S.C.A. §§
1110, 1131 (West 2002). Generally, the evidence must show: (1)
the existence of a present disability; (2) in-service incurrence
or aggravation of a disease or injury; and (3) a causal
relationship between the present disability and the disease or
injury incurred or aggravated during service. Shedden v.
Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004); Caluza v.
Brown, 7 Vet. App. 498, 505 (1995).
Further, service connection may also be granted for any disease
diagnosed after discharge, when all the evidence, including that
pertinent to service, establishes that the disease was incurred
in service. 38 U.S.C.A. § 1113(b) (West 2002); 38 C.F.R. §
3.303(d) (2009). The Board must determine whether the evidence
supports the claim or is in relative equipoise, with the
appellant prevailing in either case, or whether the preponderance
of the evidence is against the claim, in which case, service
connection must be denied. Gilbert v. Derwinski, 1 Vet. App. 49
(1990).
The Veteran has claimed entitlement to service connection for
damage to an upper front tooth, specifically tooth number 8, that
he asserted got knocked loose while on active duty. In this
regard, the Court of Appeals for Veterans Claims has specifically
held that a claim for service connection for a dental disorder is
also a claim for VA outpatient dental treatment under 38 C.F.R. §
3.381 (2009). Mays v. Brown, 5 Vet. App. 302 (1993). Thus,
adjudication of the Veteran's claim for service connection must
also include consideration of service connection for the purpose
of establishing eligibility for outpatient dental treatment,
which is set forth in 38 C.F.R. § 17.161 (2009). See also
Douglas v. Derwinski, 2 Vet. App. 435, 440 (1992); Schafrath v.
Derwinski, 1 Vet. App. 589 (1991).
The Board will first address the claim of entitlement to service-
connected compensation benefits. In this regard, the Veteran
stated at his hearing before the Board in May 2010 that he got
elbowed the tooth while working in 1971, causing it to be bent
into the back of his mouth. He stated that received a brace in
his mouth, but was told that the tooth might still die or fall
out (T. at 4). Currently, he stated that it has turned colors
and remains loose.
The Veteran's service treatment records indicate that he indeed
incurred a dental injury while on active duty. Specifically, his
dental records indicate that Tooth number 8 was partially avulsed
in November 1971. Follow-up treatment included the insertion of
a splint, although he continued to experience discomfort. A test
of tooth vitality was scheduled for the end of March 1972, but
was never completed. In any event, as the evidence indicates
that he has a dental disorder to tooth number 8 as a result of
trauma during active duty, the Board concludes that service-
connection is warranted for tooth number 8.
However, the establishment of service connection does not
necessarily give entitlement to monetary "compensation" or
"dental treatment." Therefore, the next issue is whether the
Veteran is entitled to service-connected compensation benefits or
service-connected outpatient dental treatment.
The dental conditions for which service-connected compensation
benefits are warranted are set forth under 38 C.F.R. § 4.150, DCs
9900-9916 (2008). However, the evidence does not establish a
current disability as to any other dental conditions found at 38
C.F.R. § 4.150, such as loss of maxilla, mandible, ramus,
coronoid process or hard palate. The Veteran does not argue to
the contrary. Therefore, entitlement to service-connection for
compensation purposes must be denied.
Having determined that the evidence does not support an allowance
of service-connected compensation benefits, the Board must now
consider whether service connection may be established solely for
the purpose of outpatient treatment.
Outpatient dental treatment may be authorized only if the
claimant falls into one of several enumerated classes. See 38
C.F.R. § 17.161 (2009); see also 38 U.S.C.A. § 1712(b) (West
2002); 38 C.F.R. § 17.93 (2009). Under Class I, those having a
service-connected compensable dental disability or condition may
be authorized any dental treatment indicated as reasonably
necessary to maintain oral health and masticatory function.
There is no time limitation for making an application for
treatment and no restriction as to the number of repeat episodes
of treatment. As the record shows that the Veteran does not have
a service-connected tooth disability that is of a compensable
nature, and this provision is inapplicable.
Next, under Class II, those having a service-connected
noncompensable dental condition or disability shown to have been
in existence at the time of discharge or release from active
service, which took place after September 30, 1981, may be
authorized any treatment indicated as reasonably necessary for
the one-time correction of the service-connected noncompensable
condition. In this case, the Veteran was discharged from active
duty prior to 1981, and therefore cannot be classified as Class
II.
However, the Board has determined that the Veteran is eligible
under Class II(a). Under that class, those having a service-
connected noncompensable dental condition or disability
adjudicated as resulting from combat wounds or service trauma may
be authorized any treatment indicated as reasonably necessary for
the correction of such service-connected noncompensable condition
or disability. 38 C.F.R. § 17.161(c) (2009), see also VAOPGCPREC
5-97 (January 1997). Therefore, entitlement to dental treatment
is warranted.
In considering this claim, the Board has also considered the
Veteran's statements and sworn testimony asserting that his tooth
was damaged while on active duty.
The Veteran is competent to report symptoms as they come to him
through his senses, dental disorders are not the types of
disorders that a lay person can provide competent evidence on
questions of etiology or diagnosis.
On the other hand, such competent evidence has been provided by
the medical personnel who have examined the Veteran during the
current appeal and by service records obtained and associated
with the claims file. Here, the Board attaches greater probative
weight to the clinical findings than to his statements. See
Cartright, 2 Vet. App. at 25.
As was noted above, the direct cause of the Veteran's front tooth
was trauma, and specifically as the result of a minor mishap that
occurred on active duty. Therefore, the Board concludes that
service-connection for purposes of receiving necessary treatment
should be granted, and he is entitled to outpatient dental
treatment for tooth number 8, which was damaged by trauma during
active duty service. However, service connection for
compensation purposes is not warranted.
ORDER
Service connection for residuals of dental trauma for the purpose
of disability compensation is denied.
Service connection for residuals of dental trauma for the purpose
of VA outpatient dental treatment for tooth 8 is granted.
REMAND
With regard to the Veteran's claim for entitlement to service
connection for bilateral hearing loss, the Board unfortunately
concludes that a remand is necessary in order for VA to fulfill
its duty to assist.
Specifically, at his hearing before the Board in May 2010, the
Veteran stated that the first time he sought treatment for his
asserted hearing disorder at the VA Medical Center (VAMC) in
Evansville, Indiana, at some point in the 1980's. (T. at 14).
The Veteran, through his representative, subsequently filed an
explicit request for VA to obtain records from the Evansville
VAMC from January 1980 to the present. The Board emphasizes that
records generated by VA facilities that may have an impact on the
adjudication of a claim are considered constructively in the
possession of VA adjudicators during the consideration of a
claim, regardless of whether those records are physically on
file. Dunn v. West, 11 Vet. App. 462, 466-67 (1998); Bell v.
Derwinski, 2 Vet. App. 611, 613 (1992). Since these treatment
records may impact the claim, they should be reviewed prior to
final adjudication.
Next, the Veteran also stated at his hearing that was at some
point from 1975 to 1978 at Mercy Hospital in Owensboro, Kentucky
(T. at 11-12). The record does not indicate that any attempt was
made to acquire these records. Indeed, it does not appear that
the Veteran ever mentioned receiving such treatment throughout
the course of the claim. However, after his personal hearing, he
filed a release to obtain the records. On remand, an attempt
should be made to obtain these records.
Accordingly, the case is REMANDED for the following
action:
1. Acquire any treatment records
pertaining to the Veteran's hearing loss
from the VA Medical Center in Evansville,
Indiana, for the period from 1980 to 1989.
Next, after obtaining the Veteran's
authorization, acquire any private
treatment he has received for his hearing
loss since he left active duty.
Particular attention should be given to
any treatment he received from Mercy
Hospital in Owensboro, Kentucky, from
1975-1978.
2. If and only if this development yields
any additional treatment records, the
claims file should be returned to the VA
examiner who provided an opinion in May
2008. There, the examiner should be asked
as to whether the new evidence alters the
opinion he provided previously.
A new VA examination is not required
unless deemed necessary by the examiner or
a new examiner if the current examiner is
no longer available.
3. After completion of the foregoing,
readjudicate the claim on appeal. If the
benefit sought remains denied, the Veteran
and his representative must be furnished a
supplemental statement of the case and be
given an opportunity to submit written or
other argument in response before the
claims file is returned to the Board for
further appellate consideration.
The appellant has the right to submit additional evidence and
argument on the matter or matters the Board has remanded.
Kutscherousky v. West, 12 Vet. App. 369 (1999).
This claim must be afforded expeditious treatment. The law
requires that all claims that are remanded by the Board of
Veterans' Appeals or by the United States Court of Appeals for
Veterans Claims for additional development or other appropriate
action must be handled in an expeditious manner. See 38 U.S.C.A.
§ 5109B, 7112 (West 2002 & Supp. 2010).
______________________________________________
MICHAEL A. HERMAN
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs